What does “notwithstanding anything to the contrary” mean?
Why is this sentence used in contracts?
What are some notwithstanding anything to the contrary examples?
In this article, we will break down the sentence notwithstanding anything to the contrary so you know all there is to know about it.
We will look at notwithstanding meaning in law, look at variations of the sentence notwithstanding anything to the contrary, assess its legal impact, legal challenges, examples and more.
By the time we are done, you will be able to use this sentence in the next contract you’ll negotiate!
Are you ready?
Let’s get started!
Notwithstanding anything to the contrary
What does it mean?
What does the sentence “notwithstanding anything to the contrary” mean?
Let’s break it down into smaller pieces to understanding its meaning.
The first term is “notwithstanding”.
Notwithstanding means “despite”, “in spite of” or “even if”.
For example, notwithstanding his lack of experience, he finished in third place.
This can be resentenced as “despite his lack of experience, he finished in third place”.
“Anything to the contrary” means essentially that.
Notwithstanding anything to the contrary means despite any terms that may conflict with the present provision or statement.
Definition
Notwithstanding anything to the contrary means “despite what was previously indicated”.
In contracts, when a lawyer uses the sentence “notwithstanding anything to the contrary”, the objective is to ensure that the referenced contractual provision supersedes any other provision of the contract on the same subject or potentially conflicting in essence.
Variations
There are many ways you can write the sentence notwithstanding anything to the contrary to mean the same thing or something similar, such as:
- Notwithstanding the foregoing
- Notwithstanding any other provision of law
- Notwithstanding any other provision herein
- Notwithstanding to the contrary
- Notwithstanding anything to the contrary
- To the contrary notwithstanding
- Anything to the contrary herein notwithstanding
There may be more variations of the sentence although we’ve outlined a few for the sake of giving you a few examples.
Why use the sentence “notwithstanding anything to the contrary”?
The main objective in using the sentence notwithstanding anything to the contrary is to give more importance to one contractual clause, statement or provision in relation to another.
Let’s look at the typical scenarios or reasons why this sentence may be used in contracts.
Contractual adjustments
In some cases, a lawyer or a contract law professional has a clear intention to give precedence to one clause over another.
In such a case, a lawyer may write:
“Notwithstanding Section 5 of the Agreement or any other provision to the contrary, the parties agree to…”
In this example, the intention of the author is to ensure that the current provision overrides Section 5 of the contract and uses “any other provision to the contrary” as a fallback just to protect this clause from other unintentional conflicts in the contract.
Closing a deal
In some other instances, the use of “notwithstanding anything to the contrary” is to close a deal and avoid altering other sections of the contract that has already been negotiated and agreed upon.
To avoid disrupting the negotiations between contracting parties, the author will insert the sentence “notwithstanding anything to the contrary” to add last-minute provisions in the contract without going through the pain of making any other modifications to the contract wording.
The purpose here is to include a “mini deal” in the contract, last minute, for the sake of closing the deal.
Undercutting other obligations
The notwithstanding sentence can also be used to remotely operate a change in how rights and obligations in a contract are ranked.
For example, if you have a contractual clause granting certain rights or imposing certain obligations on a party, you can remotely trump this right or obligation using the sentence starting with the term notwithstanding.
For example, a contract may say that the client may terminate the contract without any penalty.
In another clause, you can say that notwithstanding anything to the contrary, the client will be responsible to pay a termination fee of $100.
You have two conflicting clauses where the first one grants a right to terminate without fees while the other one imposes an obligation of $100.
Interpretation challenges
Using the sentence notwithstanding any other provision to the contrary or notwithstanding other provisions herein can help you adjust certain contractual rights and obligations without altering other areas of the contract.
However, with this sentence, you may incorporate interpretation challenges or ambiguities in the contract as well.
Let’s use our termination fee example.
If one clause in a contract says that a client can terminate the contract at any time without any penalty and another says that notwithstanding anything to the contrary there will be a termination penalty of $100, how should you interpret that?
You have an initial clause making it clear that there are no termination penalties while you have another clause saying the opposite.
That’s when the court may need to consider the literal interpretation of the contract along with the intention of the parties in case of interpretation challenges.
That results in more complicated legal evaluation of the contract and less certainty as to how the contract may be interpreted.
Let’s face it, sometimes, we want the uncertainty in the contract and, at other times, we want more certainty.
Up to you to assess your contractual needs and risk tolerance.
Alternatives
To avoid creating undesired interpretation issues to your detriment, it may be worth stating clearly what other provision of the contract you may want to trump using the notwithstanding anything to the contrary sentence.
For example, you can say “notwithstanding Section 5 herein, …”.
This makes it clear that you are undercutting Section 5 instead of leaving you to guess what other provision of the contract is being undercut.
Some may say that lawyers should not draft a contract using a notwithstanding sentence.
In other words, there should be no alternative to the sentence as it must not be used.
Although the argument may sometimes have merit, it may still be wishful thinking.
Just like contractors use shims to make final adjustments to their work instead of ripping and replacing the other aspects, lawyers will use “notwithstanding other provisions” as a way to adjust the contract without ripping and replacing other provisions.
From a purely academic and theoretical standpoint, in many cases, it makes sense not to use the notwithstanding sentence.
However, from a practical point of view, businesses need to find a way to close their deals and move on.
It may not be possible to eliminate all risks in a contract.
Notwithstanding anything to the contrary example
Here is an example of the sentence notwithstanding anything to the contrary used in a contract:
“Party A hereby agrees to indemnify and hold Party B harmless from any liability or damages”
“Notwithstanding anything to the contrary contained herein, the parties agree that Party A shall not indemnify Party B for third party claims resulting from Party B’s acts or omissions”
In this example, one clause imposes an indemnification obligation on Party A for the benefit of Party B while another clause outlines a carve-out to Party A’s obligation.
Frequently asked questions
Notwithstanding the foregoing legal definition
Notwithstanding the foregoing indicates to the reader that what the author is about to say supersedes or prevails over what was just presented.
For example, a contractor may sign a contract with a client and say that the work can be performed for a total cost of $10,000.
Notwithstanding the foregoing, if the cost of material goes up, the price shall be adjusted accordingly.
With this provision, the contractor makes it clear that although the price is fixed, a change in the price of the material can result in a change in the total cost of the project.
What does the sentence “Notwithstanding anything to the contrary contained in this act” mean?
This means, in spite of anything else in the law that may convey a conflicting message or meaning.
The sentence is used as a means of allowing the courts to interpret the intention of the legislator when interpreting the law.
When a judge sees an article of law start with this sentence, he or she will know that this provision must be given more importance and should supersede other provisions even if they appear to be conflicting.
